Pennsylvania Supreme Court asked to reconsider its decision striking down major portions of Act 13 as unconstitutional

On January 2, 2014, the administration of Governor Tom Corbett filed an application for reargument, asking the Pennsylvania Supreme Court, Middle District, to reconsider its December 19, 2013, decision striking down major portions of Act 13, P.L. ___, 58 Pa. C.S. §§2301-3504 (a substantial re-write of the Commonwealth’s Oil and Gas Act) as unconstitutional. In a 4-2 decision upholding the lower court’s ruling, the Pennsylvania Supreme Court held that the state cannot restrict a municipality’s ability to zone natural gas drilling and to keep natural gas wells out of residential areas. In a 162-page opinion and a 21-page concurring opinion, the Court found that sections of Act 13 violated the Environmental Rights Amendment of the state’s constitution and denied due process rights by “unconstitutionally, as a matter of substantive due process, usurp[ing] local municipalities’ duty to impose and enforce community planning…” For additional information on this decision, click here.

In urging reconsideration, the Pennsylvania Public Utility Commission and the Pennsylvania Department of Environmental Protection argue that the Supreme Court “proceeded on its own (and without explanation) to issue broad factual findings about Act 13, apply those factual findings to its new ‘balancing’ test, and declare various provisions of Act 13” to be unconstitutional. “However, there has been no evidentiary hearing and, therefore, no facts of record in this proceeding to support the broad factual findings that form the basis of the court’s” decision.

Act 13, which was signed into law in February 2012, applies to unconventional natural gas operations involving either hydraulic fracturing or the use of multilateral well bores or techniques that expose more of the geological formation to the well bore. Act 13 imposes statewide standards that dictate where wells, compressor stations and other drilling-related structures can be built. It requires all local drilling regulations to be reasonable and that any questions of reasonableness would be determined by the Public Utility Commission. 58 Pa. C.S. §§ 3302-3309.

On Monday, January 6, 2014, the Governor asked oil and gas operators to voluntarily adhere to an invalidated portion of Act 13 that requires a 300-foot setback between unconventional drilling activity and the state’s streams, rivers, waterways and wetlands. The Marcellus Shale Coalition, an industry group, has advised its members to comply with the buffer requirements, citing to the group’s continued efforts to promote and protect the environment.

This case is Robinson Township, et al v. Commonwealth of Pennsylvania, et al, Nos. 63, 64, 72 and 73 MAP 2012 (Supreme Court of Pennsylvania, Middle District, Dec. 19, 2013), appeal from the Order and Opinion of the Commonwealth Court at 284 MD 2012, dated July 26, 2012, 52 A.3d 463 (Pa. Cmwlth, 2012).

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This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713.651.3662) from Norton Rose Fulbright's Energy Practice Group.